PUBPAT Questions Suns Open-Source Patent Policies

The Public Patent Foundation and others have serious questions about what Sun's new open-source patent policies will actually mean for developers.

The Public Patent Foundation is questioning how Sun Microsystems Inc. is granting the open-source software community rights to more than 1,600 of its patents.
PUBPATs executive director, Dan Ravicher, wrote in an open letter Friday to Suns chairman and CEO, Scott McNealy, that there are serious questions about what Sun really means to do with its patent grant.
Ravicher also said in his letter that free and open-source software developers need clarification in order to get a handle on when Sun can and cannot come after them for patent infringement.

"The announcement was so broad in comparison to the related legal documents that serious questions now exist regarding what rights the public has to Suns patents," Ravicher wrote in his letter.

"Free and open-source software developers must have clear answers to these questions so that they can understand what rights they have to Suns patents."
"In Suns announcement, they make sweeping statements about how the open-source community will immediately gain access to 1,600 active Sun patents for operating systems, but the legal nitty-gritty behind the announcement shows that Sun has retained the right to aim its entire patent portfolio at GNU/Linux or any other free and open-source operating system, except, of course, for their soon-to-be-released version of Solaris," Ravicher said.
"Developers need to be very careful about the details here and not be misled into thinking Sun has given them more than it actually has."

Click here to read about why some wonder whether Sun will be able to form a viable open-source community around Open Solaris.
In the letter (PDF link) posted Friday, Ravicher said Sun needs to answer four questions "so that they can understand what rights they have to Suns patents."
These questions are:
1) Is Suns patent grant limited only to software licensed under Suns CDDL (Common Development and Distribution License)?
2) Is Suns patent grant limited only to software distributed directly by Sun?
3) Has Sun retained the right to make patent-infringement claims against anyone modifying software licensed by Sun under the CDDL?
4) Did Sun use or attempt to use its Microsoft agreements in an effort to protect free and open-source software from Microsofts patents? If not, why not?
PUBPAT is not the only one with concerns about Suns new open-source license, CDDL, and its new patent policies.
In the pages of the legal news site Groklaw, editor Pamela Jones wrote, "The license for Open Solaris has a problem, I believe. Or more accurately, it has a potential problem that is unique to Sun and which stems from its recent agreement with Microsoft."
"I take Suns patent grant as the company saying that they intend to do right as far as their own patents are concerned. But what about Microsoft? What if Sun knew about some patents Microsoft had and might someday use and yet Sun is not obliged under the license to disclose them?" Jones asked.
"It is, in the end, a matter of trust. I never, personally, enter into any contractual relationship on that basis. I want it all spelled out, including the worst-case scenario. I want to know what happens if we end up hating each other after weve entered the contract and have it all specified in the wording of the document before I sign."
Sun did not respond to requests for comment.
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Steven J. Vaughan-Nichols is editor at large for Ziff Davis Enterprise. Prior to becoming a technology journalist, Vaughan-Nichols worked at NASA and the Department of Defense on numerous major technological projects. Since then, he's focused on covering the technology and business issues that make a real difference to the people in the industry.